J  K 

30  3 


UC-NRLF 


OX   THE 


IMPLIED  POWERS  OF  THE  CONSTITUTION, 


DELIA' Elt]  PECIAL  EEQ [JEST 


LAW  SCHOOL  OF  GEORGETOWN  UXIYERSITY, 


IN  WASHINGTON.  D.  C.. 


M  «j  N  D  A  v    1-]  \'  i:  N  [  x  ( ; ,    F  ] '  i;  11  r  A  R  y    16,    1885, 


GEORGE  TICKNOE  CUSTIg. 


00 

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RU    v7S  L.  OAKI'Y,  PEINTER. 


LECTURE 


OX    THE 


IMPLIED  POWERS  OF  THE  CONSTITUTION, 

DELIVERED  BY  SPECIAL  BEQUEST 


TO   THE 


LAW  SCHOOL  OF  GEORGETOWN  UNIVERSITY, 


IN  WASHINGTON,  D.  C., 
ON 


MONDAY  EVENING,  FEBRUARY  16,  1885, 


BY 

GEORGE  TICKNOE  CURTIS. 


WASHINGTON  : 

RUFUS  H.  DARBY,  PRINTER. 

1885. 


GEORGETOWN  UNIVERSITY,  SCHOOL  OF  LAW, 

OFFICE  OF  SECRETARY, 
WASHINGTON,  D.  C.,  February  10///,  18S:,. 

Hon.  GEORGE  TICKNOR  CURTIS. 

DEAR  SIR:  I  am  directed  by  the  Faculty  of  the  Law  Department  of 
•Georgetown  University  to  request  of  you  the  manuscript  of  your  lecture  on 
"The  Implied  Powers  of  the  Constitution,"  with  a  view  to  its  publication- 

Very  respectfully, 

S.  M.  YEATMAX, 

tary. 


L  E  C  T  U  E  E. 


We  hear  a  great  deal,  and  probably  we  shall  continue  to 
hear  a  great  deal,  about  a  liberal  and  a  strict  construction  of 
the  Constitution.  You  are  engaged  in  a  study  of  the  Con- 
stitution preparatory  to  taking  your  places  in  active  life  as 
lawyers  and  citizens.  It  is  of  great  importance  for  you, 
therefore,  to  know  whether  it  is  correct  to  regard  the  so- 
called  strict  construction  as  inadmissible  because  it  is  too 
narrow ;  whether  the  so-called  liberal  construction  is  always 
the  safe  one  ;  and  whether  there  is  not  a  clear  and  well  de- 
fined rule  of  interpretation,  which  should  not  be  called  either 
strict  or  liberal,  in  the  sense  of  being  harmful  and  injurious 
to  the  great  objects  for  which  this  Constitution  was  created. 
Arid  here  let  me  advise  you  not  to  be  governed  by  what  is 
supposed  to  be  the  characteristic  tendency  of  this  or  that 
political  party,  in  forming  your  opinions  about  the  Consti- 
tution of  your  country.  You  have  something  higher  and 
better  to  do,  in  prosecuting  the  studies  in  which  you  are  now 
engaged,  than  to  accept  the  dogmas  of  a  party  because  you 
or  your  friends  may  happen  to  act  with  it.  What  you  have 
to  do  is  to  subject  party  dogmas  to  the  proper  tests  of  truth 
and  sound  reasoning,  leaving  the  result  to  fall  where  it  may, 
so  far  as  all  political  parties  are  concerned. 

Still  there  have  been  from  the  first  two  schools  of  interpre- 
tation, one  of  which  has  been  characterized  as  liberal  and  the 
other  as  strict.  Great  names  may  be  arrayed  on  either  side. 
The  two  schools  have  mutually  charged  each  other  with  very 


4  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

wrong  and  very  dangerous  tenancies.  But  I  have  long  be- 
lieved that  it  is  best  to  discard  the  epithets  of  strict  and  lib- 
eral, and  to  inquire  into  the  true  and  sound  method  of  inter- 
pretation, without  characterizing  it  by  either  of  these  phrases, 
Nine  men  out  of  ten  whom  you  hear  talking  glibly  about  the 
mode  in  which  the  Constitution  should  be  construed,  could 
not  tell  the  meaning  of  the  strict  or  the  liberal  construction  on 
which  they  insist.  The  true  method  of  interpretation  can  not 
be  characterized  or  described  by  a  phrase.  It  must  be  ascer- 
tained by  certain  fundamental  rules,  which  are  to  be  deduced 
from  a  careful  study  of  the  text,  from  the  surrounding  his- 
torical facts  which  show  why  the  text  was  made  as  it  was, 
and  from  the  great  leading  purposes  for  which  the  Constitu- 
tion was  established.  These  sources  of  interpretation  all 
point  to  certain  conclusions,  namely,  that  the  Government 
of  the  United  States  is  a  limited  government,  with  certain 
enumerated  and  described  powers ;  that  it  is  not  a  govern- 
ment of  universal  authority  like  many  other  governments; 
but  that  its  authority  is  specific,  confined  to  certain  described 
subjects  and  relations,  which  the  Constitution  itself  denom- 
inates its  "  powers,"  and  to  one  or  more  of  which  powers  all 
its  acts  must  be  referred. 

The  fundamental  principle  on  which  our  Constitution  is 
based  is  that  all  government  derives  its  existence  and  author- 
ity from  the  people.  Hence  it  can  have  no  powers  but  such 
as  the  people  choose  to  confer  upon  it.  Its  powers  are  grants 
made  to  it  by  the  people.  From  the  limited  number  and 
specific  character  of  the  powers  conferred  by  the  Constitu- 
tion on  the  General  Government — less  than  all  the  powers 
of  sovereignty — it  follows  that  the  people  of  this  country  arc 
a  nation  only  for  certain  defined  purposes  and  objects  which 
concern  them  all  alike.  All  other  powers  of  government, 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  5 

all  other  objects  of  government,  are  expressly  reserved  to  the 
respective  States  or  their  people,  by  a  provision  which  is  a 
part  of  the  Constitution  itself. 

But  there  is  another  truth  of  equal  importance  and  equally 
undeniable.  This  is  the  supremacy  of  the  Federal  Constitu- 
tion. It  declares  itself  to  be  the  supreme  law  of  the  land. 
Its  supremacy  means  that  to  the  full  extent  of  its  granted 
powers,  the  authority  of  the  Constitution  is  perfect,  incapa- 
ble of  being  controlled  by  the  State  governments ;  and  that 
when  any  conflict  arises  the  State  must  give  way.  A  mode 
of  effecting  a  peaceful  solution  of  all  such  conflicts  is  pro- 
vided through  the  Supreme  Federal  Judiciary.  But  it  is 
sometimes  a  matter  for  careful  interpretation  how  far  the 
authority  of  this  G-overnment  extends,  or  what  is  the  sphere 
of  its  constitutional  operation.  Hence  arises  the  necessity 
for  inquiring  what  are  its  implied  powers,  or  powers  which 
incidentally  result  from  or  are  embraced  in  the  express  powers 
that  are  described  in  the  text  in  general  terms.  yiThis  is  the 
principal  topic  on  which  I  propose  to  say  something  this 
•evening. 

I  will,  however,  first  "advert  to  the  unwritten  history  of 
opinion  and  belief  concerning  the  nature  of  the  Constitution. 
I  call  it  an  unwritten  history,  because,  although  the  mate- 
rials for  it  are  ample,  they  have  never  yet  been  embodied  in 
a  connected  and  methodical  narrative.  I  hope  ere  long  to 
make  an  effort  to  do  this.  It  is  a  part  of  our  constitutional 
history  that  it  is  both  very  curious  and  very  instructive.  It 
bears  directly  upon  that  long  conflict  which  finally  culmi- 
nated in  a  civil  war ;  and  it  shows  how  completely  the  two 
opposite  theories  of  the  Constitution  were  matters  of  opin- 
ion and  belief,  about  which  men  could  and  did  honestly  and 
conscientiously  differ,  whatever  were  the  immediately  excit- 


6  IMPLIED  POWERS  OF  THE  CONSTITUTION, 

ing  causes  which  more  or  less  influenced  them.  I  now  make 
a  passing  reference  to  the  doctrine  of  State  secession  from 
the  Union  only  for  the  purpose  of  saying  that  secession  \va> 
supposed  to  be  a  constitutional  right  resulting  from  a  certain 
view  of  the  nature  of  the  Constitution.  This  view  was  that 
the  powers  that  had  heen  ceded  hy  a  State  to  the  Govern- 
ment of  the  Union  could  be  revoked  or  withdrawn  when 
the  people  of  the  State  believed  that  their  safety  required  it; 
and  this  was  supposed  to  be  the  exercise  of  a  constitutional 
right,  and  not  an  exercise  of  the  right  of  revolution.  Xot 
very  long  ago  I  had  in  my  possession  the  official  copy  of  the 
Ordinance  of  Secession  adopted  by  South  Carolina  in  De- 
cember, 1860,  which  was  served  upon  President  Buchanan, 
to  give  him  formal  notice  that  the  State  had  withdrawn  from 
the  Union.  The  original  bore  the  sign-manual  of  every 
member  of  the  State  convention.  The  copy  served  upon 
the  President  repeated  the  signatures,  and  the  document  was 
authenticated  by  the  great  seal  of  the  State.  It  was  a  remark- 
able instrument,  and  was,  I  believe,  the  model  of  all  the 
other  secession  ordinances.  It  purported  to  repeal  all  the 
acts  of  the  State  by  which  it  had  ratified  and  adopted  the 
Constitution  of  the  United  States.  Of  course  its  theory  was 
that  the  cession  of  political  powers  and  jurisdiction  which 
the  State  had  made  to  the  Federal  Government  was  consti- 
tutionally revocable.  On  the  other  hand,  the  opposite  theory 
was  that  the  grant  of  those  powers  was  irrevocable  by  any 
constitutional  proceeding,  and  that  in  every  constitutional 
sense  the  people  of  South  Carolina  were  just  as  much  bound 
to  obey  the  laws  of  the  United  States  after  secession  as 
they  were  before.  This  was  the  theory  on  which  the  war 
was  waged  by  the  Federal  Government  for  the  purpose  of 
putting  down  all  obstructions  to  the  exercise  of  its  proper 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  7 

authority.  This  was  the  justification,  and  the  only  justifi- 
cation for  the  war;  and  it  was  a  complete  justification,, 
although  it  was  all  the  while  nothing  but  the  assertion  of  a 
matter  of  opinion  and  belief  concerning  the  true  nature  of 
the  Constitution.  It  might,  and  it  did  seem  to  intelligent 
and  impartial  foreigners  who  looked  upon  the  terrible  con- 
flict, a  very  strange  question  to  put  to  the  arbitrament  and 
decision  of  war ;  but  there  was  no  other  arbitrament  to  which 
it  could  be  submitted.  With  this  issue  thus  submitted  to  a, 
trial  of  strength,  in  the  form  of  regular  war,  if  the  South- 
ern arms  had  prevailed  the  right  of  State  secession  from  the 
Union  would  have  been  forever  established  as  a  constitutional 
right.  The  Federal  arms  having  prevailed,  the  right  of 
State  secession  from  the  Union  is  forever  negatived  as  a 
constitutional  right.  Men  may  entertain,  as  a  matter  of 
theory,  whatever  opinion  about  it  their  convictions  lead  them 
to  entertain  ;  but,  as  a  right  capable  of  being  practically  ex- 
ercised, all  Americans  are  now  happily  agreed  that  it  is. 
ended. 

But  this  great  event,  the  final  negation  of  the  constitutional 
right  of  secession,  has  not  changed  the  character  of  the  Con- 
stitution as  a  limited  government.     There  has  been,  since 
the  close  of  the  civil  war,  through  certain  amendments  of 
the  Constitution,  some  further  diminution  of  the  State  sov- 
ereignties, and  some  addition  to  the  powers  of  the  Federal 
Government,  in  matters  to  \vhich  I  need  not  now  specially 
refer.     But  it  still  remains  true  that  this  is  a  government  of 
limited,  specific  and  defined  powers.     The  rules  of  inter- 
pretation to  be  applied  to  those  powers  are  still  the  same.    It 
is  still  true  that  all  the  powers  of  government  which  the 
Federal  Constitution  and  its  amendments  do  not  embrace ^ 
belong  to  the  States  or  their  people.     No  sensible  person. 


8  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

doubts  this,  although  we  do  see  now  and  then  cropping  out 
the  idea  that  since  the  war  the  character  of  our  mixed  sys- 
tem of  government  is  changed.  It  is  not  changed  in  a  single 
iota,  excepting  in  so  far  as  the  States  have  submitted  to  a 
few  special  diminutions  of  their  own  sovereignties,  beyond 
what  they  had  previously  surrendered.  We  must  still  look 
to  the  same  rules  of  interpretation  of  the  Federal  powers, 
although  the  number  of  those  powers  has  been  increased  in 
a  few  particulars,  and  the  State  sovereignties  have  been  to 
just  the  same  extent  diminished.  For  this  reason  I  propose 
to  speak  to  you  of  the  fundamental  rale  of  interpretation  in 
judging  of  the  extent  and  character  of  what  are  called  the 
incidental  or  implied  powers. 

But  before  doing  so  let  me  direct  your  attention  to  a  mat- 
ter which  seems  almost  to  require  some  apology  for  alluding 
to  it  at  all.  We  hear  much  nowadays  about  the  so-called 
"  general  welfare  clause "  of  the  Constitution.  The  Con- 
stitution uses  the  words  general  welfare  in  just  two  places, 
.and  no  more.  In  the  preamble  the  promotion  of  the  gene- 
ral welfare  is  one  of  the  objects  enumerated,  along  with  five 
others,  for  which  the  people  of  the  United  States  ordain  and 
establish  the  Constitution.  The  wildest  and  most  latitudi- 
narian  constructionist  would  hardly  venture  to  tell  an  audi- 
ence of  intelligent  law  students  that  the  preamble  of  the  Con- 
stitution contains  any  grant  of  power.  It  simply  asserts  the 
grand  objects  which  the  people  aim  to  secure  by  the  Consti- 
tution :  but  as  to  the  means  by  which  they  do  secure  these 
desirable  objects  we  must  look  into  the  body  of  the  Consti- 
tution and  among  its  enumerated  powers.  Looking  into  the 
body  of  the  instrument  we  come  upon  the  1st  clause  of  the  8th 
section  of  article  1  of  the  Constitution,  which  contains  the 
grant  of  the  taxing  power.  Here  the  words  general  welfare 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  0 

are  used  again ;  and,  strange  to  say,  there  are  persons  who 
suppose  that  this  clause  contains  a  grant  of  authority  to  tax 
in  order  to  promote  the  personal  welfare  of  every  man,  woman 
and  child  in  the  United  States  !  I  shall  merely  counsel  you 
to  analyze  the  clause  and  see  how  strange  this  notion  is.  The 
clause  grants  to  the  Congress  a  power  to  tax  the  people  for 
three  special  purposes  :  First,  to  pay  the  dehts  of  the  United 
States:  second,  to  provide  for  the  common  defense  of  the  United 
States;  third,  to  provide  for  the  general  welfare  of  the  United 
States.  In  every  one  of  these  special  purposes  for  which  the 
taxing  power  is  to  be  exercised,  "  the  United  States  "  means 
the  political  corporation  known  as  the  United  States,  and 
not  the  individual  inhabitants  of  the  country.  The  debts 
that  are  to  be  paid  are  the  debts  of  the  Government ;  the 
common  defense  that  is  to  be  provided  for  is  the  defense  of 
the  Government  in  all  those  matters  in  which  it  has  duties 
of  defense  to  discharge  for  the  whole  country  ;  the  general 
welfare  that  is  to  be  provided  for  is  the  well-being  of  the 
Government  in  all  those  matters  of  which  it  has  special 
cognizance,  and  in  respect  to  which  its  efficiency  concerns 
the  whole  Union.*  In  the  very  next  clause,  which  con- 


*  No  other  meaning  can  be  assigned  to  the  words  "  the  United  States"  that  would  be 
consistent  with  the  framework  of  the  Constitution.  If  it  had  been  intended  to  create 
a  government  with  an  unlimited  power  of  taxation  for  the  purpose  of  promoting  any 
other  welfare  than  the  welfare  or  efficiency  of  the  Government  itself  in  the  exercise  of 
its  specific  powers,  no  enumeration  or  description  of  its  powers  would  have  been  neces- 
sary. The  taxing  clause  would  have  embraced  an  authority  to  legislate  upon  all  possi- 
ble subjects  on  which  the  levying  of  taxes  would  be  needful  to  promote  the  well-being 
of  the  people  of  the  United  States.  It  is  only  by  giving  a  uniform  meaning  to  each  of 
the  three  objects  for  which  the  taxing  power  is  to  be  exercised,  and  by  collating  these 
objects  with  the  defined  and  enumerated  legislative  powers  which  follow  the  taxing 
clause,  that  we  can  arrive  at  any  consistent  view  of  the  welfare  that  is  to  be  provided 
for  by  an  exercise  of  the  taxing  power.  As  the  source  of  an  independent  power,  dis- 
connected with  the  specific  and  enumerated  legislative  powers  which  follow  it,  the  tax- 
ing clause  would  be  in  itself  a  creation  of  a  government  that  would  absorb  every  possi- 
ble object  that  money  could  promote.  Instead  of  legislating  in  the  exercise  of  the 
described  and  enumerated  legislative  powers,  and  levying  taxes  to  defray  the  expenses 


10  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

tains  the  grant  of  power  to  borrow  money  on  the  credit 
of  the  United  States,  the  "United  States"  is  used  in  the 
same  sense,  meaning  the  government  known  as  the  United 
States.  It  is  on  the  credit  of  the  Government,  not  on  the 
credit  of  individuals  or  of  States,  that  Congress  is  authorized 
to  borrow  money. 

of  the  Government  incurred  for  the  special  objects  of  those  powers,  it  would  only  be- 
necessary  for  Congress  to  lay  and  collect  whatever  taxes  it  might  de  em  needful  to  pro- 
mote the  general  welfare  of  the  country,  and  to  appropriate  the  money  thus  raised  to- 
any  objects  that  could  be  considered  as  called  for  in  the  interest  of  the  public  good. 

There  is  great  force  in  the  words  "to  provide  for."  The  words  are  not  "  to  promote 
the  general  welfare,"  as  they  are  sometimes  read.  Congress  is  authorized  to  lay  and 
collect  taxes  in  order  "to  provide  for"  the  "common  defense  and  general  welfare  of 
the  United  States."  The  words  "  to  provide  for  "  are  used  many  times  in  the  Constitu- 
tion, and  they  always  have  a  meaning  distinct  from  the  term  "  to  promote."  In  legal 
signification,  "  to  provide  for  "  means  "  to  legislate  for,"  to  accomplish  by  direct  enact- 
ment, as  to  provide  for  the  punishment  of  counterfeiting  the  securities  and  current  coin 
of  the  United  States;  to  provide  and  maintain  a  navy ;  to  provide  for  calling  forth  the 
militia ;  to  provide  for  organizing,  arming  and  disciplining  the  militia.  "  To  promote," 
on  the  other  hand,  as  used  in  the  Constitution,  is  to  secure  an  incidental  effect.  It  sig- 
nifies the  main  purpose  to  be  accomplished  by  the  exercise  of  a  certain  power  of  legis- 
lation ;  as  "to  promote  the  progress  of  science  and  the  useful  arts  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their  respective  writings  and  dis- 
coveries." There  is  another  phrase  used  in  the  Constitution  in  the  same  sense  as  "  to 
provide  for;"  this  is  "  to  establish ; "  as  to  "establish  post-offices  and  post-roads,"  to  "  es- 
tablish a  uniform  rule  of  naturalization."  Still  another  phrase  is  "  to  constitute,"  as  to- 
"  constitute  tribunals  inferior  to  the  Supreme  Court."  In  this  use  of  the  words  "  to  es- 
tablish "  and  "  to  constitute,"  there  is  a  granted  power  to  create,  or  to  bring  into  legal 
existence.  But  ''to  provide  for"  a  thing,  although  it  has  the  same  meaning  as  to 
create  or  bring  into  legal  existence  by  legislation,  is  very  different  from  the  mean- 
ing of  the  phrase  "  to  promote."  The  latter  denotes  an  incidental  object  that  is  to 
be  accomplished  by  the  legislation.  The  former  denotes  the  legislation  itself.  In  the 
taxing  clause  two  things  are  embraced.  The  first  is  the  taxing  power  itself.  The  sec- 
ond comprehends  the  three  objects  for  which  the  power  is  to  be  exercised  and  to  which 
it  is  limited.  The  first  of  these  is  to  obtain  by  legislation  the  means  for  paying  the 
debts  of  the  United  States.  The  second  is  tl  to  provide  for  the  common  defense  of  the 
United  States."  The  third  is  "  to  provide  for  the  general  welfare  of  the  United  States." 
The  "  provision  "  that  is  to  be  made  for  each  of  these  objects  is  a  provision  by  the  legis- 
lation which  levies  and  collects  the  taxes. 

I  have  noticed  that  in  the  Alphabetical  Analysis,  given  in  Rickey's  edition  of  the  Con- 
stitution (a very  useful  manual), the  words  "general  welfare  "  are  indexed  as  follows  : 
"  GENERAL  WELFARE.  —The  Constitution  established  to  promote  the  general  welfare."*  * 

— "  Preamble.'1'' 

"  GENERAL  WELFARE.  —Congress  shall  have  power  to  provide  for  the  general  welfare.*  * 

—"Art.  1,  S'ff.  8,  d.  1." 

While  this  mode  of  indexing  preserves  the  distinction  between  "  to  promote  "  and 


IMPLIED  POWERS  OF  THE  CONSTITUTION,  11 

Now  look  at  the  stupendous  communism  that  is  wrapped 
up  in  the  taxing  power,  on  the  supposition  that  it  includes 
a  power  to  tax  for  the  promotion  of  the  welfare  of  individuals. 
There  is  no  limit  to  the  taxing  power,  excepting  that  duties, 
imposts  and  excises  must  he  uniform  throughout  the  United 
States.  All  the  property  in  the  country  may  be  taxed  with- 
out limit  for  the  legitimate  objects  of  taxation.  If  one  of 
those  legitimate  objects  is  the  welfare  of  individuals,  or 
masses,  or  classes,  or  of  the  whole  people,  the  two  Houses 
of  Congress  and  any  President  acting  together  can  divide 
up  all  the  property  in  the  country  upon  the  plea  that  a  gen- 
eral division  will  promote  the  general  welfare.  By  this  pro- 
cess this  Government  could  devour  itself,  and  there  would 
be  nothing  left  for  it  to  subsist  upon.  But  it  happens  that 
one  of  the  grand  purposes  for  which  this  Government  was 
established  was  the  protection  of  property,  and  its  Consti- 
tution contains  guarantees  designed  for  the  protection  of 
property  that  are  more  remarkable  and  efficient  than  any 
that  exist  under  most  of  the  other  governments  in  the  world. 


"to  provide  for,"  the  omission  from  the  last  reference  of  the  words  "the  United 
States,"  tvould  lead  a  cursory  reader,  consulting  the  index,  to  infer  that  Congress  has 
power  to  provide  for  the  general  welfare  of  the  country,  or  of  the  people  of  the  coxmtry. 
With  this  idea  in  his  mind,  if  he  should  turn  to  the  taxing  clause,  to  which  he  is  refer- 
red, he  would  be  apt  to  draw  a  very  erroneous  inference.  It  is  not  the  general  welfare 
of  the  country  or  of  the  people  of  the  country,  that  Congress  is  authorized  to  provide 
for  by  an  exercise  of  the  taxing  power;  it  is  the  general  welfare  of"  the  United  States"" 
which  means  the  political  corporation  or  government  known  as  the  United  States. 

As  I  have  criticised  Hickey's  Alphabetical  Analysis  in  one  place,  it  is  but  fair  to  add 
that  iu  anther  place  iti?ives  the'qiialifyin?  words  "  the  United  States,"  as  follows: 

"  UNITED  STATES.— Congress  ^hall  have  power  to  provide  for  the  common  defense  and 
general  welfare  of  the  United  States.  *  *  *  —  Art.  8,  Sec.  1.  cL  1." 

But  even  this  mode  of  statement  or  analysis  is  incorrect.  The  taxing  clause  does  not 
say  that  Congress  shall  have  power  to  provide  for  the  common  defense  and  general 
welfare  of  the  United  States.  It  says  that  Congress  shall  have  a  power  to  lay  and  col- 
lect taxes,  duties,  imposts,  and  excises,  in  order  to  obtain  means  to  pay  the  debts  of  the 
United  States,  and  to  make  provision  for  the  common  defense  and  general  welfare  of 
the  Government.  This  welfare  is  its  efficiency,  in  point  of  pecuniary  means,  for  the 
exercise  of  all  the  specific  powers  which  follow  the  grant  of  the  taxing  power. 


12  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

At  the  same  time  the  Constitution  contains  guarantees  of 
personal  rights  that  are  as  strong  and  efficient  as  those  afforded 
to  the  rights  of  property.  But  I  will  detain  you  no  longer 
upon  this  very  singular  notion  of  the  general  welfare,  except- 
ing to  remark  that  there  are  now  large  establishments  in 
this  Government,  on  which  great  sums  are  expended  every 
year,  and  which  rest  on  no  better  constitutional  foundation 
than  this  strange  idea  of  "  the  general  welfare  clause." 
Some  of  these  establishments  can  not  be  referred  to  any 
specific  power  of  the  Constitution ;  they  do  not  result  by  any 
rational  rule  of  interpretation  from  any  one  or  more  of  the 
admitted  powers  of  the  Government.  There  are  other  estab- 
lishments which  do  result  from  some  one  or  more  of  the 
express  powrers  of  the  Constitution.  There  are  systems  of 
Federal  legislation  which  can,  and  there  are  systems  which 
can  not,  be  referred  to  some  of  the  powers  of  the  Constitution, 
as  implied  in,  and  resulting  from,  those  powers  when  measured 
by  the  true  rule  of  interpretation.  There  are  other  systems 
of  legislation  which  flow  from  the  fact  that  the  Government 
of  the  United  States  is  a  great  landed  proprietor;  a  capacity 
which  is  to  be  distinguished  from  its  powers  of  political 
sovereignty.  I  am  now  considering  the  latter,  and  I  wish 
to  give  you  what  I  believe  to  be  the  true  rule  for  interpreting 
them. 

If  you  take  the  express  powers  of  the  Constitution,  the 
first  thing  that  will  strike  you  will  be  that  they  are  described 
in  general,  but  appropriate  terms.  There  are  seventeen 
specific  powers  of  legislation  granted  to  the  Congress  in 
the  8th  section  of  article  1.  Take  any  one  of  them — the 
power  to  borrow  money  on  the  credit  of  the  United  States; 
or  the  power  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States  and  with  the  Indian  tribes ;  or  the 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  13 

power  to  establish  post-offices  and  post-roads;  or  the  power 
to  raise  and  support  armies;  or  the  power  to  provide  and 
maintain  a  navy,  and  so  on.  From  the  language  in  which 
each  of  the  specific  legislative  powers  is  described,  you  will 
perceive  that  the  details  of  the  mode  of  its  exercise  are 
not  given,  as,  indeed,  they  could  not  be  well  given  in 
such  an  instrument  as  a  written  constitution.  Again,  the 
executive  power,  which  is  vested  in  the  President,  is  simply 
described  as  the  executive  power,  and  how  that  power  is  to 
be  exercised  is  not  mentioned.  So,  too,  of  the  judicial 
power ;  the  tribunals  in  which  it  is  or  may  be  vested,  and 
the  subjects  to  which  it  is  to  extend  are  mentioned,  but  the 
details  of  its  exercise  are  not  mentioned.  In  the  process  of 
framing  the  Constitution,  when  it  had  been  determined  in 
what  language  the  powers  of  the  three  great  departments, 
the  legislative,  the  executive  and  the  judicial,  should  be 
couched,  it  was  apparent  that  the  filling  up  of  the  outline 
must  be  left  to  legislation.  Here  again  the  details  of  the 
legislation  could  not  be  foreseen,  and  therefore  they  could 
not  be  given  in  the  Constitution  itself.  In  each  of  the  express 
and  granted  powers,  there  must,  from  the  very  nature  of 
government  or  political  sovereignty,  be  many  things  implied, 
as  part  and  parcel  of  each  specific  power.  How  then  was 
this  matter  to  be  left?  AYas  it  to  be  left  to  implication,  or 
was  there  to  be  a  rule  of  determination  given  in  the  Consti- 
tution itself,  which  would  forever  remain  as  the  measure  of 
these  incidental,  undescribed  and  resulting  powers,  which 
all  were  agreed  must  be  included  in  the  general  terms  that 
embraced  the  scope  and  nature  of  all  the  express  and  enum- 
erated powers  of  the  Constitution  ?  The  framers  of  the  Con- 
stitution decided  that  such  a  rule  must  be  laid  down,  and 
accordingly  they  ended  the  enumeration  of  the  legislative 


14  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

powers  bj  a  clause  which  gave  to  the  Congress  authority 
"to  make  all  laws  which  shall  be  necessary  and  proper  for 
-carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  department  or  officer  thereof." 

It  is  not  necessary  for  me  to  detain  you  with  the  controver- 
sies which  sprang  up  from  the  first  about  the  meaning  of  the 
terms  "  necessary  and  proper,"  as  applied  to  the  laws  which 
Congress  is  thus  authorized  to  enact,  because  the  clause  itself 
carries  in  its  own  language  the  meaning  of  these  terms.  The 
laws  are  not  to  be  all  such  laws  as  the  Congress  may  in  its  dis- 
cretion deem  necessary  and  proper ;  nor  are  they  to  be  only 
such  laws  as  are  indispensably  necessary  to  the  exercise  of  a 
specific  power,  and  without  which  the  power  must  remain 
dormant.  They  are  to  be  laws  which  are  necessary  and 
proper  for  carrying  into  execution  the  various  specific  p  )wers  of 
the  Government  or  some  one  of  its  branches,  which  powers 
are  vested  in  the  Government  or  in  one  of  its  branches  by 
the  Constitution.  That  is  to  say,  the  law  by  which  a  specific 
power  of  the  Constitution  is  to  be  exercised  must  bear  the  re- 
lation of  means  to  an  end ;  must  be  appropriate  as  a  means 
to  the  attainment  of  the  object  of  the  specific  power ;  or  in 
other  words,  it  must  execute  the  power,  and  not  be  something 
which  bears  only  a  remote,  fanciful,  indirect,  or  incomplete 
relation  to  that  power.  N~ow  the  elements  which  go  to  make 
up  an  incidental  or  implied  power,  such  as  Congress  can 
constitutionally  resort  to,  were  laid  down  by  Chief-Justice 
Marshall  and  his  associates  on  the  bench  of  the  Supreme 
Court  more  than  sixty-five  years  ago,  in  a  construction  of  this 
clause  of  the  Constitution,  which  all  men  of  all  parties  pro- 
fess still  to  be  guided  by,  but  which  is  often  nowadays  mis- 
taken. The  elements  are  of  a  three-fold  character:  one  of 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  15 

them  is  a  negative  quality,  the  two  others  are  positive  qual- 
ities. The  negative  quality  is  that  the  law  must  not  be 
one  that  is  prohibited  by  the  Constitution.  There  are  nu- 
merous prohibitory  clauses  Avhich  impose  positive  restraints 
upon  the  legislative  authority,  and  a  law  which  should  violate 
one  of  these  would  be  unconstitutional,  even  if  it  should  be 
one  that  is  constantly  resorted  to  by  other  governments. 
Here  you  perceive  that  while  our  Constitution  has  made 
grants  of  certain  specific  powers  of  government,  it  has  nar- 
rowed the  scope  of  these  powers  by  excluding  from  them 
certain  modes  in  which  they  could  be  exercised  if  these  re- 
straints were  not  imposed.  But  this  is  not  all.  IS'ot  only 
must  a  law  of  this  <  Government  be  one  that  is  not  prohibited 
by  the  Constitution,  but  it  must  have  two  positive  qualities 
as  well.  First,  the  means  or  instrumentality  chosen  for  the 
execution  of  an  acknowledged  power  of  the  Constitution 
must  be  plainly  adapted  to  that  end;  the  meaning  of  which 
is  that  it  must  execute  the  power.  Finally,  the  law  must  be 
consistent  with  both  the  letter  and  the  spirit  of  the  Constitu- 
tion ;  the  meaning  of  which  is  that  it  must  accord  with  every 
positive  provision  of  the  Constitution,  and  with  its  general 
intent  and  purpose.  This  is  one  great  branch  of  the  rule  of 
interpretation  of  the  implied  powers  of  legislation. 

There  is  another  branch  of  this  comprehensive  rule.' 
When  you  look  into  the  clause  which  defines  the  scope  of 
the  legislative  powers,  you  find  that  it  assumes  a  certain  range 
of  legislative  discretion.  While  this  discretion  is  limited  by 
the  requirements  which  I  have  just  mentioned,  there  are  a 
variety  of  means  or  instrumentalities,  within  those  limits,  in 
regard  to  which  Congress  can  exercise  a  choice,  by  employing 
one  or  another.  It  has  become  customary  to  call  this  ques- 
tion of  what  means  or  instrumentalities,  within  certain 


16  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

limits,  Congress  may  resort  to  a  "political  question."  The 
meaning  of  this  is  that  the  necessity  or  expediency  of  resort- 
ing to  one  means  or  instrumentality  rather  than  to  another, 
when  both  possess  the  requisite  qualities,  is  a  question  of 
legislative  discretion.  Of  this  question  Congress  is  the  judge, 
and  the  final  judge.  But  the  question  whether  the  particular 
means  or  instrumentality  which  Congress  decides  to  employ, 
possesses  the  qualities  and  characteristics  defined  by  the  rule 
of  interpretation,  whether  it  bears  the  defined  relations  to 
the  execution  of  one  of  the  known  specific  powers  of  the 
Constitution,  is  not  a  political  question,  and  is  not  committed 
to  the  final  decision  of  Congress.  It  is  a  judicial  question; 
and  although  Congress  in  enacting  the  law,  decides  this 
question  for  itself,  and  in  the  first  instance,  it  is  for  the  judicial 
power  to  decide  it  finally.  It  was  to  determine  this  judicial 
question  that  the  judicial  power  was  created  and  was  given 
cognizance  of  all  cases  arising  under  the  Constitution. 

Let  me  now  give  some  illustrations  of  this  great  rule  of 
interpretation.  There  is  a  power  to  make  war.  A  particu- 
lar military  engine,  although  it  did  not  exist  when  the  Con- 
stitution was  established,  may  be  employed  as  a  means  of 
making  war,  because  it  directly  executes  the  power  of  carry- 
ing on  war.  It  has  all  the  requisite  qualities  and  character- 
istics of  the  constitutional  relation  of  means  to  an  end,  and 
whether  it  shall  be  employed  is  a  mere  matter  of  legislative 
discretion,  or,  as  is  said,  it  is  a  political  question.  Again, 
there  is  a  power  to  collect  and  distribute  revenue,  and  a 
power  to  borrow  money.  A  national  bank  may  be  created 
by  Congress,  not  because  the  creation  of  banks  is  an  incident 
of  general  sovereignty,  or  because  other  governments  create 
banks,  but  because  a  bank  is  an  instrument  that  will 
directly  execute  the  specific  power  to  borrow  money  or  the 


IMPLIED  POWERS  OF  THE  CONSTITUTION.  17 

specific  power  to  collect  and  distribute  revenue.  It  has 
all  the  qualities  and  capacities  required  for  an  exercise 
of  one  or  more  of  the  specific  powers  of  the  Constitution, 
and  whether  it  shall  be  employed  is  a  matter  of  legislative 
discretion.  There  is  a  power  to  establish  post-offices  and  post- 
roads.  Whether  the  mails  shall  be  carried  by  railway  or  by 
stage  coach,  is  a  matter  of  legislative  discretion  and  choice. 
Whether  one  or  the  other  means  is  used,  the  means  chosen 
directly  executes  the  power.  But  when  you  come  to  the 
employment  of  a  means  which,  although  not  expressly  pro- 
hibited in  the  Constitution,  does  not  execute  the  power  which 
it  professes  to  execute — does  not  bear  the  requisite  relation 
to  that  power,  and  is  not  in  accord  with  both  the  letter  and  the 
spirit  of  the  Constitution — it  is  not  within  the  constitutional 
range  of  the  legislative  choice ;  and  whether  it  is  or  is  not 
within  that  range,  is,  as  a  final  question,  a  question  for  the 
judicial  power. 

You  will  next  ask  how  you  are  to  know  that  a  law,  or  any 
provision  of  a  law,  is  not  in  accord  with  the  letter  or  the 
spirit  of  the  Constitution  ?  The  answer  to  this  question  is 
very  simple.  If  there  is  any  clause  of  the  Constitution  with 
which  the  law  is  inconsistent,  with  which  it  comes  in  con- 
tact, with  which  it  is  not  in  harmony,  the  law  is  not  in  accord 
with  the  letter  of  the  Constitution  If  the  law  is  inconsist- 
ent with  any  of  the  great  purposes  for  which  the  Constitu- 
tion was  established  it  does  not  accord  with  the  spirit  of  the 
Constitution.  An  apt  illustration  of  this  is  the  law  which 
makes  the  promissory  notes  of  the  Government  a  legal  tender 
for  private  debts.  There  is  a  provision  of  the  Constitution, 
a  part  of  its  letter,  which  confers  on  Congress  the  exclusive 
power  of  coining  money,  and  regulating  its  value.  Those 
who  deny  the  power  of  Congress  to  make  paper  money  a 


18        IMPLIED  POWERS  OF  THE  CONSTITUTION. 

legal  tender  for  private  debts,  can  with  good  reason  say  that 
it  is  not  reconcilable  with  the  coinage  power,  because  that 
power  was  established  for  the  purpose  of  having  a  metallic 
standard  and  measure  of  values  to  operate  everywhere 
throughout  the  country,  whereas  the  value  of  paper  money 
is  a  thing  that  no  legislation  can  fix.  All  the  laws  that  can 
be  enacted  cannot  control  the  laws  of  trade,  which  are  be- 
yond the  reach  of  legislation.  If  the  condition  -of  things 
at  any  time  makes  a  piece  of  paper  stamped  as  a  dollar  of 
less  value  than  the  gold  standard,  all  the  legislation  in  the 
world  cannot  make  it  of  equal  value.  Again,  the  Constitution 
was  established  to  secure  justice,  protect  the  rights  of  property, 
and  give  to  our  possessions  a  value  that  should  be  measured 
by  the  standard  recognized  throughout  the  commercial  world. 
This  is  the  spirit  of  the  Constitution  in  relation  to  property 
and  contracts,  and  those  who  deny  the  right  of  Congress  to 
make  Government  paper  a  legal  tender  in  private  contracts, 
can  with  truth  say  that  such  a  law  is  not  in  accord  with  the 
spirit  of  the  Constitution,  any  more  than  it  is  with  its  letter. 
I  repeat,  it  is  not  enough  that  a  law  which  selects  and  pro- 
fesses to  make  a  particular  means  an  execution  of  some 
granted  power  of  the  Government,  is  not  expressly  prohib- 
ited in  the  Constitution.  j*-i£  is  not  enough  that  it  is  a  law 
which  other  governments  make,  whose  powers  of  legislation 
and  government  are  unlimited.  It  must  be  a  law  which  this 
Government  can  make,  and  therefore  it  must  have  in  addi- 
tion to  the  negative  quality  of  not  being  prohibited  in  the 
Constitution,  two  other  positive  qualities,  namely,  that  the 
means  or  instrumentalities  which  it  professes  to  employ  for 
executing  a  specific  power  of  the  Constitution  must  really 
^V  execute  it,  and  must  also  be  consistent  with  both  the  letter 
and  the  spirit  of  the  Constitution. 


IMPLIED  POWERS  OF  THE  CONSTITUTION.         19 

I  use  again  as  an  illustration  of  this  great  rule  the  power 
to  borrow  money  on  the  credit  of  the  United  States.  Be- 
yond all  doubt  Congress  can  adopt  any  legislation  by  which 
this  power  can  be  executed ;  that  is  to  say,  it  can  issue  any 
forms  of  bonds,  bills  or  notes,  to  be  given  to  any  person  from 
whom  money  is  to  be  borrowed.  But  when  to  such  paper 
obligations  or  acknowledgments  of  public  debt  there  is  \ 
added  the  quality  of  being  a  compulsory  legal  tender  in  the 
payment  of  debts  between  private  individuals,  you  perceive 
that  a  question  instantly  arises  whether  Congress  has  power 
to  compel  me  as  a  creditor  to  receive  from  my  debtor,  as  full 
value  for  my  debt,  a  promissory  note  of  the  Government 
which  the  Government  has  given  to  its  creditor,  from  whom 
it  has  borrowed  money  in  a  transaction  with  which  I  had 
nothing  to  do,  when  that  note  may  have  a  market  value  be- 
low the  gold  standard  of  value.  The  argument  that  the 
issue  of  such  legal-tender  paper  currency  will  facilitate  the 
borrowing  of  money  by  the  Government,  does  not  satisfy 
the  measure  of  the  legislative  powers.  It  could  be  said  of  a 
law  which  made  Government  notes  compulsory  payments  for 
theater  tickets,  or  for  supplies  of  provisions,  that  it  would 
facilitate  the  borrowing  of  money  by  the  Government,  for 
such  a  currency  might  be  sought  for  by  persons  who  had 
money  to  lend  to  the  Government,  especially  if  they  could  get 
it  at  a  round  discount.  This  idea  of  facilitating  the  borrow- 
ing of  money  by  the  Government,  by  making jits  promissory 
notes  a  legal  tender  for  private  debts,  no  matter  what  may  be 
their  depreciation,  does  not  fulfill  the  great  rule  of  interpre- 
tation of  the  implied  powers ;  first,  because  it  does  not  execute 
the  Government's  power  of  borrowing  money,  inasmuch  as 
the  transaction  by  which  the  Government  borrows  money  on 
its  note  is,  to  use  a  legal  phrase,  res  inter  olios  acta,  and  you 


20         IMPLIED  POWERS  OF  THE  CONSTITUTION. 

or  I,  as  a  private  creditor  of  a  private  debtor,  have  nothing 
to  do  with  it;  secondly,  because  no  human  ingenuity  can 
make  it  consistent  with  the  letter  or  the  spirit  of  the  Consti- 
tution to  compel  me  to  discharge  the  full  face  of  a  debt, 
measured  by  the  gold  standard  of  value,  for  a  promissory 
note  of  the  Government,  which  some  one  or  more  offered 
itors  has  been  content  to  take,  and  which,  when  tendered  to 
me,  may  be  of  less  value  than  the  gold  standard. 

I  have  adverted  to  the  true  rule  for  the  interpretation  of 
the  implied  powers,  arid  to  the  particular  application  of  it  to 
the  legal-tender  paper  question,  because  this  is  beyond  all 
comparison  the  most  important  question  of  our  time.  It 
matters  not  who  is  responsible  for  the  original  enactment,  or 
the  re-enactment  of  this  legal-tender  provision.  There  are 
men  in  all  parties  who  believe  it  to  be  constitutionally  right, 
and  men  who  believe  it  to  be  constitutionally  wrong.  What 
you  are  most  concerned  in  is  to  see  what  is  to  become  of 
property,  of  the  value  of  property,  if  Congress  possesses  the 
power  that  has  been  attributed  to  it,  and  that  it  has  exercised. 
Tne  power  that  has  been  attributed  to  it,  and  that  it  has 
exercised,  is  not  confined  to  any  particular  state  of  public 
affairs,  because  it  is  claimed  that  Congress  can  judge  for 
itself  when  the  public  interest  requires  the  issue  of  a  legal- 
tender  paper  currency.  So  that  it  is  only  necessary  at  any 
time  to  elect  a  majority  of  members  of  both  Houses  of  Con- 
gress, who  for  any  reason  whatever  will  favor  the  issue  of 
any  amount  of  such  currency,  and  to  have  a  President  who 
agrees  with  them,  and  the  man  who  counts  his  treasure  by 
millions,  and  the  day-laborer  who  buys  his  food  with  the 
currency  which  he  may  be  compelled  to  take  for  his  wages, 
or  the  farmer  who  must  take  that  currency  for  his  crops,  are 
alike  involved  in  an  enormous  confiscation,  which  results 


IMPLIED  POWEES  OF  THE  CONSTITUTION.         21 

from  displacing  the  gold  standard  and  measure  of  values.  It 
is  useless  to  set  up,  as  a  barrier,  any  confidence  that  we  may 
feel  in  the  wisdom  of  our  legislators.  Their  wisdom  may 
lead  them  to  do  very  unwise  things.  The  only  safe  barrier 
is  the  wisdom  that  is  embodied  in  the  Constitution,  and  what 
that  is,  is  to  be  learned  by  a  sound  interpretation  of  the 
implied  powers. 

I  could  employ  many  other  illustrations  of  the  rule  of 
inter  '^tation,  in  which  every  one  would  concur,  because 
there  has  been  as  yet  no  legislation  which  has  entered  into 
the  politics  of  parties,  in  the  exercise  of  other  constitutional 
powers.  For  example,  take  the  power  to  "  promote  the 
progress  of  science  and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries."  The  laws  which  regu- 
late the  granting  of  patents  and  copyrights,  and  which  pro- 
vide a  judicial  remedy  for  infringements,  are  strictly  in  execu- 
tion of  the  power  to  secure  such  property.  But  now  suppose 
that  Congress  should  enact  a  law  limiting  the  price  at  which 
an  inventor  should  be  allowed  to  sell  this  invention  or  an 
author  to  sell  his  book.  Would  any  one  say  that  this  would 
be  anything  but  a  usurpation?  Would  any  one  pretend  that 
such  a  law  bore  any  sort  of  relation  to  the  constitutional 
power,  or  was  in  any  sense  an  execution  of  it? 

Take  the  power  to  regulate  commerce  among  the  several 
States.  This  is  rather  in  the  nature  of  a  police  power.  It 
is  a  power  to  protect  persons  and  property  in  transit  from 
one  State  to  another,  to  prevent  obstructions  to  free  intercourse 
by  State  legislation,  to  prevent  State  taxation  of  property 
or  persons  passing  from  one  State  to  another,  and  to  prevent 
the  establishment  by  the  States  of  any  exclusive  right  of  land 
or  water  carriage  from  one  State  to  another.  Laws  of  the 


22         IMPLIED  POWERS  OF  THE  CONSTITUTION, 

United  States  which  effect  these  objects  are  direct  executions 
of  the  commercial  power  of  the  Federal  Government.  But 
no\v  suppose  that  Congress  should  enact  a  law  regulating  the 
price  to  be  charged  by  a  vendor  of  merchandise  dwelling  in 
one  State  which  is  to  be  delivered  to  a  vendee  dwelling  in 
another  State,  or  a  law  prescribing  what  charge  should  be 
made  for  drawing  a  bill  of  exchange  at  New  Orleans  on  New 
York,  or  a  law  limiting  the  freight  or  passage  money  to  be 
charged  by  a  carrier  of  merchandise  or  passengers  from  Chi- 
cago to  Baltimore.  Would  either  of  these  be  a  regulation 
of  inter-state  commerce  ?  Would  either  of  them  be  a  law 
bearing  the  requisite  relation  to  the  commercial  power  ? 
Would  either  of  them  execute  that  power  ? 

Let  me  again  advise  you  in  studying  such  questions  as 
these  not  to  be  deterred  from  the  prosecution  of  truth  by  the 
outcry  of  "  strict  construction."  It  will  not  help  you  in  the 
least  to  inquire  what  is  the  proper  phrase  to  apply  to  the 
method  of  interpretation,  whether  it  should  be  called  liberal 
or  strict.  Neither  is  it  of  any  sort  of  consequence  to  you 
how  this  or  that  political  party  habitually  construes  the  Con- 
stitution. I  take  it  that  you  do  not  attend  a  law-school  for 
the  purpose  of  learning  what  party  you  had  better  join.  The 
study  of  the  Constitution  in  which  you  are  engaged  will  not 
be  much  promoted  by  consulting  the  "  platforms  "  of  parties 
or  the  professed  sentiments  of  politicians.  Go  to  other  sources. 
Go  to  the  judicial  interpretations  of  the  Constitution,  from 
the  "beginning  of  the  Government  to  the  present  day,  and 
extracting  from  them  the  sound  rule  which  marks  the  bound- 
aries of  the  Federal  powers,  form  your  opinions  and  beliefs  by 
that  rule,  and  let  others  class  you  as  strict  or  as  liberal  con- 
structionists  without  the  smallest  care  on  your  part  about 
either  phrase.  You  will  find  that  what  is  called  a  liberal 


IMPLIED  POWEES  OF  THE  CONSTITUTION.  23 

construction  is  sometimes  right  and  sometimes  wrong.  You 
will  find  the  same  thing  to  be  true  of  what  is  called  a  strict 
construction.  The  rule  laid  down  by  Chief- Justice  Marshall 
and  his  brethren  is  broad  enough  to  give  this  Government  all 
the  scope  that  it  ever  ought  to  claim,  and  strict  enough  to 
prevent  it  from  encroaching  on  the  rights  of  States  or  of  in- 
dividuals. So  long  as  it  shall  be  observed  this  Government 
cannot  go  wrong.  When  it  is  departed  from  this  Govern- 
ment will  wander  from  its  sphere,  and  although  it  may  daz- 
zle the  beholders  and  excite  their  admiration  and  gratify 
their  love  of  power,  it  will  dislocate  the  whole  political  sys- 
tem that  was  established  by  our  fathers  and  made  consistent 
with  liberty. 

Let  me  give  you  one  other  counsel.  Do  not  allow  your- 
selves to  be  disturbed  by  that  other  outcry  which  seeks  to 
bring  reproach  or  disfavor  upon  the  doctrine  of  State-rights. 
The  abnormal  assertion  of  the  right  of  secession  from  the 
Union,  as  a  constitutional  right  of  the  States,  which  is  now  hap- 
pily eliminated  from  their  constitutional  rights,  should  never 
prevent  you  from  seeing  that  our  political  system  does  em- 
brace and  uphold  State-rights  which  are  as  unquestionable 
and  positive  as  are  the  rights  and  powers  of  this  Government. 
Consider  for  one  moment  what  would  have  happened  if,  at  the 
time  of  the  establishment  of  this  Constitution,  all  the  ele- 
ments of  political  power  and  government  had  been  fused 
into  one  mass;  had  been  concentered  and  concentrated  into 
the  hands  of  one  central  authority  ;  that  the  people  of  the 
States  had  riot  interposed  by  the  tenth  amendment  and  de- 
clared that  "  the  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."  Give 
the  freest  scope  to  your  imaginations,  and  imagine,  if  you 


24  IMPLIED  POWERS  OF  THE  CONSTITUTION. 

can,  whether  we  could  have  carried  our  civilization  from 
ocean  to  ocean  if  the  sovereignties  of  the  States  had  not  been 
thus  protected  ;  whether  the  central  power  could  have  wisely 
and  safely  legislated  for  all  the  objects  of  social  life,  if  the 
State  sovereignties  had  not  been  thus  preserved ;  whether  the 
absorption  of  all  the  powers  of  government  into  one  central 
authority  would  not  have  ended  in  a  despotism  that  would  at 
last  have  been  broken  down  by  its  own  feebleness.  The  truth 
is,  that  our  mixed  system  of  separate  States  and  a  limited 
central  government,  the  States  holding  and  exercising  each 
for  itself  and  within  itself  all  the  powers  of  government 
which  it  has  not,  through  this  Constitution,  ceded  to  the  United 
States,  or  which  the  Constitution  has  not  expressly  prohib- 
ited, has  enabled  us  to  attain  to  a  degree  of  civilization,  of 
happiness  and  renown  to  which  no  other  system  could  have 
conducted  us.  We  can  preserve  this  system  only  by  taking 
care  that  each  of  the  two  kinds  of  government  confines  itself 
to  the  sphere  marked  out  for  it. 


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JUN    6     1933 


MAY  24 


JUN  5    1956 

^27195 

lNov'59Mj 
REC'D  LD 

06UO 


REC'^J  LD 

fiOV  13 1959 


LD  21-50m-l,'35 


YC  09148 


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